<nettime> whois and ecommerce

[t byfield <tbyfield@panix.com>]

<http://www.panix.com/~tbyfield/WHOIS_lis.html>

   FOR THE IPC MEETING IN WASHINGTON, D.C.
   FEBRUARY 25 & 26
   
    Proposed Statement of the DNSO Intellectual Property Constituency on
                          Matters Related to WHOIS
                                      
   Prepared on behalf of the IPC by:
   
   Sarah Deutsch, Private Sector Working Group (Bell Atlantic)
   Mike Heltzer, International Trademark Association
   Steve Metalitz, International Intellectual Property Alliance (Past IPC
   Interim President)
   
   Mike Kirk, American Intellectual Property Law Association, IPC
   President
   
   Introduction
   
   WHOIS is Vital for Effective E-Commerce
   
   E-Commerce figures are steadily moving up and off the charts. A study
   by the University of Texas' Center for Research in Electronic
   Commerce, which was sponsored by Cisco Systems and cited by the U.S.
   Department of Commerce in its report entitled The Emerging Digital
   Economy II, indicates that 1998 total e-commerce (business-to-business
   plus business-to-consumer) was $102 billion. The Department of
   Commerce itself, has stated:
   
   The Internet plays an important role in a much larger number of
   transactions than those completed online. In addition to the shoppers
   who choose items online, but pay for them off-line, the Internet is an
   important source of research that influences off-line ordering and
   purchasing, particularly for big ticket items such as autos.
   The heightened importance of e-commerce, along with the recent spate
   of conflicts between domain names and trademarks, have increased the
   demands on the part trademark owners to search domain name registries.
   The searches are typically done through the WHOIS system.
   Trademark owners undertake WHOIS searches in an attempt to avoid
   possible conflicts, as well as to cure an unauthorized and confusing
   use of their mark. Such nefarious uses often lead to consumer
   confusion, thereby resulting in lost sales and goodwill that is
   typically associated with the mark.
   
   The growth of Internet piracy has also increased the importance of
   WHOIS to copyright owners seeking to identify online infringers for
   enforcement and/or licensing purposes. Finally, WHOIS is a useful tool
   for consumers seeking to identify online merchants, the source of
   unsolicited e-mail, etc.
   
   Prior to the accreditation of 90 plus new registrars by the Internet
   Corporation for Assigned Names and Numbers ("ICANN"), Network
   Solutions, Inc. ("NSI") stood alone as the registrar of generic
   top-level domain names ("gTLDs"). While not perfect, the NSI WHOIS
   system assisted in the identification of online copyright infringers
   and helped trademark owners police their marks in cyberspace. The
   inclusion of WHOIS obligations in the accreditation agreements for new
   registrars was also a positive step. However, in practice, with the
   addition of new registrars and the ever increasing use of country code
   top-level domains ("ccTLDs"), it appears that WHOIS has become less
   useful to intellectual property owners and to consumers. This trend
   must be reversed if the healthy growth of electronic commerce is to be
   encouraged.
   
   It is the position of the Intellectual Property Constituency ("IPC")
   that a complete and uniform WHOIS system is essential to the
   prevention of consumer confusion. Therefore, the IPC proposes that
   there be a one or more multi-faceted WHOIS sites that can carry out
   searches across all registries and registrars. If a system to support
   such sites cannot be implemented by the affected registries and
   registrars within a short time frame, then ICANN should administer
   such a system. We further submit that new gTLDs should not be added,
   until, among other things, an improved WHOIS system is in place. This
   short paper will outline the problems of the current WHOIS system and
   explain what the IPC would like to see in terms of reform.
   
   What is Wrong with WHOIS
   No Definitive, Comprehensive WHOIS
   
   Before the introduction of competition in gTLD registration services,
   it was possible to go to one site (NSI) to obtain WHOIS data for all
   gTLD registrations. This is no longer the case. There appears to be no
   site from which all registrar WHOIS files can be searched, although
   there are a number of sites that search across some subset of
   registrars. The registry WHOIS site will only tell you if the exact
   name you seek is registered and provide you with the registrar.
   
   Another problem with the current WHOIS set-up is that not all of the
   separate registrar WHOIS sites have the same capabilities. Only NSI,
   for example, allows you to search by exact domain name, domain name
   owner, contact name owner, handle, and IP address. For all of the
   others, you are limited only to exact domain names. This can prove
   frustrating, especially if you are attempting to determine whether a
   particular individual has developed a pattern of cybersquatting
   activity.
   
   Other Emerging Problems with WHOIS
   
   The bulk access issue is proving to be problematic. First, boolean
   searching of a registrar's WHOIS database at that registrar's site
   does not require bulk access. This is a service that each accredited
   registrar should be required to provide for free under the
   accreditation agreement. Bulk access rules should apply only when a
   party seeks a complete copy of substantially all of the registrar's
   WHOIS database. Second, the $10,000 ceiling for bulk access should be
   revisited, as this may deter companies from purchasing bulk access for
   all of the registrars. Third, for some reason third party
   re-disseminators are not offering the fully-featured search
   capabilities that consumers need. If this is due to the insufficiency
   of the bulk access arrangements that these third parties must conclude
   with each registrar, then policy changes may be needed.
   Furthermore, many registrars are not complying with their
   WHOIS-related obligations under the accreditation agreement. Few if
   any have designated a contact point to which evidence of false or
   fraudulent contact data may be supplied, and few if any have taken
   steps to cancel registrations based on bogus contact data. The WHOIS
   sites of some registrars are not even readily ascertainable. IPC is
   pleased to learn that ICANN intends to acquire a compliance review
   capability with respect to accredited registrars, and we urge ICANN to
   give this initiative high priority.
   
   Problems Specific to the NSI WHOIS
   
   NSI, despite the addition of 90 plus new registrars, remains the
   premier domain name registrar in the world. It is therefore crucial
   that it lead the way in developing search capabilities on its WHOIS
   site, as well as in the development of the universal WHOIS system.
   
   NSI has in fact shown some leadership in the WHOIS area. Take the
   example cited above, namely the ability to search by means other than
   the exact domain name. Yet, the NSI system is still not as functional
   as is required by trademark owners to conduct a proper search. When
   searching by domain name owner, for example, you only get the first 50
   "hits." In addition, there is no function that allows you to search
   for additional "hits" or to know the total number of "hits."
   Therefore, there is no way to get a complete listing for a domain name
   registrant who has registered more than 50 domain names with NSI.
   
   Also, with respect to NSI, when the domain name owner's name begins
   with a word which NSI uses for its query syntax, e.g. NET, it is
   impossible to search for it. For example, a search trying to retrieve
   names owned by Net Searchers International Ltd receives an "error"
   message "No Network for Searchers International Ltd."
   
   Availability of information is inconsistent. For example, it has been
   reported that during the month of January, there were times when a
   search by "name" of the registrant was not possible. Then, it was put
   back on. The information should be available all of the time.
   
   WHOIS does not permit use of truncations or boolean logic. For
   example, if Nintendo wanted to search WHOIS for truncations of its
   Pokemon trademarks under the truncation "Poke," it would be unable to
   do so. Similarly, Exxon Mobil cannot search WHOIS for domain names
   using both Exxon "And" Mobil.
   
   Finally, "bulk" access continues to be a huge problem. The tapes
   provided to Thomson & Thomson by NSI are reportedly out-of-date.
   
   What Would We Like to See
   
   The IPC has taken the liberty of drawing up a WHOIS "wish list." In
   presenting this list, the IPC also agrees to work with ICANN in the
   development of the type of system we propose.
   
   (1) One or more WHOIS sites capable of searching across all registrars
   and registries, including the ccTLDs. On that site we want to be able
   to search by:
   
   )Data should be presented in a consistent format in whatever registry
   it comes from.
   
   )There should be a link from the registrar or registry name to their
   particular site so that any specific policy may be easily accessed,
   and contact points identified for complaints concerning false or
   absent contact data.
   
   )All of these full-search capabilities should apply across the board
   to all registrars with respect to bulk access searches.
   )Each registrar to employ automated mechanisms to filter out obviously
   false contact data submitted by registrants.
   
   Conclusion
   
   The IPC is not against new gTLDs. We simply believe that appropriate
   safeguards must be put in place before ICANN expands the root.
   Principal among these safeguards is ready access to multi faceted
   WHOIS sites that allow full-featured searching across all registries
   and registrars. This system will help ensure the protection of
   trademarks and copyrights in cyberspace, as well as simultaneously
   protecting the interests of consumers who use the Internet to make
   important purchasing decisions.

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